Government Emergency Ordinance no. 15/2024 on credit servicers and credit purchasers and amending and supplementing certain regulations on consumer credit agreements (“Ordinance“) is a transposition into national law of Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers (i.e. a legal person that, in the course of its business, manages and enforces the rights and obligations related to a creditor’s rights under a non-performing credit agreement, or to the non-performing credit agreement itself, on behalf of a credit purchaser, and carries out at least one or more credit servicing activities) and credit purchasers (i.e. any natural or legal person, other than a credit institution, that purchases a creditor’s rights under a non-performing credit agreement, or the non-performing credit agreement itself, in the course of its trade, business or profession) and amending Directives 2008/48/EC and 2014/17/EU, which is intended to bring the approach to non-performing loans in line with the European approach.
The Ordinance defines the credit servicing activities as being one or more of the following activities:
- collecting or recovering from the borrower any payments due related to a creditor’s rights under a credit agreement or to the credit agreement itself;
- renegotiating with the borrower any terms and conditions related to a creditor’s rights under a credit agreement, or of the credit agreement itself, in line with the instructions given by the credit purchaser, where the credit servicer is not a credit intermediary;
- administering any complaints relating to a creditor’s rights under a credit agreement or to the credit agreement itself;
- informing the borrower of any changes in interest rates or charges or of any payments due related to a creditor’s rights under a credit agreement or to the credit agreement itself;
The Ordinance shall not apply to the following: (i) a credit institution established in the Union; (ii) an alternative investment fund manager (AIFM), or a management company, or an investment company provided that the investment company has not designated a management company, on behalf of the fund it manages; (iii) a non-credit institution subject to supervision by a competent authority of a Member State when performing activities in that Member State; (iv) the servicing of a creditor’s rights under a credit agreement, or of the credit agreement itself, that was not issued by a credit institution established in the Union except where the creditor’s rights under the credit agreement, or the credit agreement itself, is replaced by a credit agreement issued by such credit institution; (v) the purchase of a creditor’s rights under a non-performing credit agreement (i.e. a credit agreement that is classified as a non-performing exposure in accordance with Article 47a of Regulation (EU) no 575/2013), or of the non-performing credit agreement itself, by a credit institution established in the Union; (vi) the transfer of a creditor’s rights under a credit agreement, or of the credit agreement itself, transferred before 29 June 2024.
Entities whose country of origin is Romania may continue to carry out credit servicing activities, in accordance with national legislation, in in the territory of Romania until 29 June 2024 or until the date on which they obtain authorisation under the Ordinance, whichever comes first.
The competent authority for granting authorisation to credit servicers is the National Authority for Consumer Protection („ANPC”), which, within 90 days of receipt of a complete application for authorisation (45 days to consider whether it is complete), grants or refuses authorisation. Reasons must be given for the refusal and can be appealed to the competent courts. ANPC supervises, investigates, sanctions, carries out controls, transmits the results of the research carried out regarding credit servicers in Romania or other member states of the European Union. Also, ANPC draws up and updates the national register of all credit servicers authorized to provide services in the territory of Romania, including credit servicers that provide services in other European Union states.
Credit servicers benefit from a legislative framework adapted to the needs of the capital markets and the financial system, a series of requirements being established both regarding the members of the management body or the administrative body, but also among the applicants for the authorization to operate in the territory of Romania (eg: it is even necessary to obtain the prior approval of the National Bank of Romania regarding the establishment of the procedures to combat money laundering and terrorism financing provided by Romanian law).
Regarding the credit purchasers, if they or their representatives choose to manage and execute themselves the rights and obligations related to the creditor’s rights arising from a non-performing credit agreement or the non-performing credit agreement itself, the credit purchasers or their representatives are considered as credit servicers and must be authorized by ANPC.
A credit purchaser whose domicile or registered office is not in the European Union has the obligation to designate in writing a representative in Romania who has his domicile or registered office either in Romania or in another member state of the European Union.
The relevant legal provisions of the European Union and the national legal provisions concerning, in particular, the execution of contracts, consumer protection, debtors’ rights, the granting of loans, the rules on banking secrecy, the rules applicable to insolvency, the rules on bills of exchange, and applicable criminal law are still applied to the credit buyer after the assignment to the credit buyer of the creditor’s rights arising from the credit agreement or the credit agreement itself.
In relation to borrowers, the Ordinance sets out the procedure to be followed for the resolution of complaints against credit purchasers, credit servicers and credit service providers. It establishes a number of obligations for credit purchaser and credit servicers in their relations with borrowers, including (i) providing information that is not misleading, unclear or false, (ii) respecting and protecting personal information and the right to privacy, (iii) communicating in a way that does not constitute harassment, coercion or undue influence or (iv) acting in good faith, fairly and professionally. This ensures the legal framework for consumer protection and good ethical practice in the management and purchase of bad loans. Credit servicers must also establish and apply efficient and transparent procedures for the free resolution of complaints received from borrowers.
The Ordinance complements other legislative acts regulating consumer credit agreements (GEO no. 50/2010) and credit agreements offered to consumers for real estate (GEO no. 52/2016) by introducing provisions in line with the Ordinance.
